Bank Guarantees and Letters of Credit: Time for a Return to the Fold

ARTICLES BANK GUARANTEES AND LETTERS OF CREDIT: TIME FOR A RETURN TO THE FOLD BORIS KOZOLCHYK* TABLE OF CONTENTS Foreword by James E. Byrne ................................ 3 1 Introduction: Bank Guarantees, Standby and Commercial Letters of C redit .................................................... 7 2 The 1978 ICC Uniform Rules for Contract Guarantees (URCG) ................................................... 11 3 The Contemporary European Bank Guarantee: The Practice.. 15 3.1 Types of Issuers ................................... 15 3.2 The Context of Issuance ............................. 16 3.3 The Bank Guarantee Profile ......................... 18 3.4 Customary Bank Guarantee Forms .................... 20 3.4.1 The Causal Section ............................. 21 3.4.2 The Abstract Section: Sources of Abstraction ......... 25 * © 1989, Boris Kozolchyk. Professor of Law, University of Arizona College of Law. This article is dedicated to Henry Harfield, Esq., whose teachings, friendship and wit this author has enjoyed for many years, on the occasion of his retirementfrom the hyperactive practice of law. (Henry will never retire from active practice.) This article contains segments of two chapters of B. KOZOLCHYK, COMMERCIAL LETTERS OF CREDIT IN THE AMERICAS (2d ed.), to be published by Little, Brown and Co. The author wishes to thank Professor James E. Byrne of the George Mason University School of Law for his thoughtful comments and suggestions, and acknowledges the helpful assistance of Harold S. Burman, Esq. of the Office of the Legal Advisor, United States Department of State, for facilitating access to helpful documentation; Mark Wayne for the preparation of Appendices A-C and the litigation chart (in con- junction with Anne Hunnycut); Mark Richter, a Harvard-Zurich doctoral candidate for supplying some of the European bank guarantee forms; and Angela P. Aczoza for help with the German materials. Although the author was a member of the United States Study Team that evaluated a draft of a proposed UNCITRAL Convention on the law of Bank Guarantees in preparation for the November 1988 Vienna UNCI- TRAL meeting, and is a member of the Secretary of State Advisory Board on Interna- tional Trade Law, the views expressed in this article are solely the author's and do not represent the official position of the United States State Department or of any other agency or instrumentality of the United States. Published by Penn Law: Legal Scholarship Repository, 2014 2 U. Pa. J. Int'l Bus. L. [Vol. 11:1 3.4.3 Abstract Language .............................. 27 3.5 The Expiry Section ................................. 28 3.5.1 The Beneficiary Statute of Limitations Problem ...... 29 3.5.2 The Extend or Pay Practice ...................... 31 4 T he L aw ............................................. 32 4.1 Statutory Law ..................................... 32 4.2 Decisional Law ................................ 35 4.2.1 A Profile of Bank Guarantee Litigation ............. 35 4.2.2 Abuse of Rights and Fraud ....................... 38 4.2.3 French and Belgian Decisions ..................... 38 4.2.4 German and Austrian Decisions ................... 44 4.2.4.1 Summary Procedures: Injunctions and Attachments .. .......................................................4 5 4.2.4.2 Illustrative Fraud and Abuse of Rights Decisions .47 4.2.4.3 Conclusions ................................ 49 4.2.5 English Decisions ............................... 50 4.2.6 Conflicts ...................................... 52 4.2.6.1 Illegality ................................... 52 4.2.6.2 Other Sources of Conflict ..................... 55 5 The Draft ICC Rules (URG) and Lege Ferenda ............ 58 5.1 Scope ............................................ 59 5.2 C ertainty ......................................... 61 5.3 A bstraction ........................................ 61 5.4 Expiry Rules and the Extend or Pay Practice ........... 65 5.5 Choice of Law ..................................... 66 6 C onclusions ........................................... 67 A ppendix A ............................................. 71 Composite Text: Tender Guarantee .......................... 71 A ppendix B ............................................. 74 Composite Text: Advance Payment Guarantee ................. 74 A ppendix C ............................................. 77 Composite Text: Performance Guarantee ..................... 77 https://scholarship.law.upenn.edu/jil/vol11/iss1/1 1989] BANK GUARANTEES AND LETTERS OF CREDIT FOREWORD JAMES E. BYRNE** At a time when the trade in goods and services has become increasingly sophisticated and has come to command enormous resources, the need for a reliable paymaster has not slackened. If anything, the need has increased. The tremendous breakthroughs in technology and telecommunications which have permitted virtually simultaneous trans- mission and receipt of data have not served to lessen the critical role of independent third party payment mechanisms either. Although these developments radically alter the circumstances under which payment occurs, there remains a need for an independent and trustworthy financial intermediary. Exactly how much these advances will impact third party financial instruments is not altogether clear but its effect is multi- faceted as recent work in the law and practice related to the trillions of dollars transferred by the wire transfer systems indicates. The issues are as fundamental as the character of the undertakings: Are the undertakings consensual in the sense that there is or needs be a mutuality of obligation? What is formality? What is a writing or signature? In ad- dition, questions remain concerning matters of liability, risk, fraud, and damages. In this extremely dynamic environment, however, one dimension of the brave new world we face is becoming increasingly clear: it is global. The computer, satellites, and telecommunications technology have in one fell swoop, as it were, mandated the unification of the in- frastructures, legal and operational, which underlie third party payment devices. Where an undertaking made in Japan can impact within minutes on the technical and practical level undertakings in London, New York, and Cairo, there can be little tolerance for laws and rules which are fundamentally incompatible or uncertain as to scope, character, or interrelationship. In the field of letters of credit, much of the ground breaking work in creating this new international order has been done by the Commis- sion on Banking Technique and Practice of the International Chamber of Commerce inspired by the far-seeing leadership of Bernard Wheble, its Chairman. The Uniform Customs and Practice for Documentary ** Associate Professor of Law, George Mason University School of Law; Chair- man of the American Bar Association's Task Force on the Study of U.C.C. Article 5; U.S. Delegate to the Session of the United Nations Commission on International Trade Law Working Group on Contract Practices which addressed letters of credit and bank guarantees. Published by Penn Law: Legal Scholarship Repository, 2014 U. Pa. J. Int'l Bus. L. [Vol. 11:1 Credits has in its successive revisions created an atmosphere of coopera- tion and trust among those engaged in letter of credit practice which has permitted identification of areas of agreement and resolution of problems as they have arisen. As a result, the letter of credit has func- tioned reasonably well for almost a century of intense use with hardly any positive law and with relatively little decisional law. Ironically, the unparalleled success of the UCP in ordering letter of credit practice has, in a sense, set in train events which have thrown into jeopardy its stability. The trust accorded letters of credit by the market as to their original use in trade in goods has led to their expan- sion in assuring performance of undertakings or payment of obliga- tions. So prevalent has been the need for a reliable mechanism by which payment or performance could be assured that these so-called standby letters of credit in the United States alone have grown to approximately $175 billion, dwarfing the approximately $30 billion out- standing in commercial credits. Standbys are not, however, by any means a U.S. device since they are used extensively in more than 30 countries in North America, South America, Australia and Asia. Nor is their use, as is sometimes suggested, a result of peculiarities in the U.S. regulatory scheme under which U.S. banks are generally restricted from issuance of guarantees. The standby represents a deliberate at- tempt engineered in the early 1950's in large part under the auspices of Leonard A. Back of Citibank and Henry Harfield of Shearman & Sterling who almost singlehandedly led and shaped U.S. letter of credit law during the vital decades that standbys were coming to the fore. Their remarkable success was to create a genre of independent or ab- stracted assurances not by the fashioning of a new instrument but through the extension of the tried and true letter of credit. The use of credits in circumstances in which payment is the excep- tion and where charged situations are more likely to arise has, however, created strains which, in turn, require adjustment and revision of rules and law. A parallel development has occurred in Europe under which an independent or banker's guarantee practice has arisen. As docu- mented in this article, it has faced similar and perhaps even more diffi- cult problems. Because of the tremendous

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